National Amicus Practice

Shook, Hardy & Bacon’s National Amicus Practice has a long history of success in shaping judge-made law through the filing of amicus or “friend of the court” briefs. The group authors more than 30 amicus briefs each year on behalf of trade, professional and civil justice associations in state and federal appellate courts, including state supreme courts and the Supreme Court of the United States.

Why Amicus Briefs? Amicus briefs can be integral to a successful appeal. They can raise the profile of a case, emphasize and expand key arguments, provide national and historic context, explore public policy considerations, and give judges a better understanding of how their rulings affect those outside the courtroom.

Why Shook? Our National Amicus Practice is one of the most robust in the country. Since 2000, we have filed amicus briefs in the U.S. Supreme Court, nearly all of the federal appellate circuits, and more than two-thirds of the states. Shook lawyers are at the forefront of many key issues that affect litigation results, particularly where creative plaintiffs’ lawyers seek to expand tort, product liability and consumer law. We also regularly address unsound litigation practices that put American businesses at risk of excessive, improper liability and defend the prerogative of state legislatures to enact laws placing rational, needed constraints on liability.

As part of this practice, we publish our State Supreme Court Watch to alert clients and friends of important cases, both when granted review and decided. If you are interested in receiving this newsletter, please email Phil Goldberg.

Shook’s Results

Our National Amicus Practice has had tremendous successes. Most notably, Public Policy Group Chair Victor Schwartz urged the U.S. Supreme Court to make judges better gatekeepers of expert testimony. The court’s ruling in Daubert v. Merrill Dow Pharmaceuticals adopted this concept and has helped exclude junk science in many cases.

Overall, courts have cited our briefs and scholarship more than 125 times, often in seminal decisions on cutting-edge issues.

Here are some recent examples:

Asbestos Litigation: We have filed amicus briefs in nearly every major asbestos case in the past 15 years. Our briefs have helped stop claims from unimpaired plaintiffs, the expansion of premises owner liability to take-home cases, and the “any exposure” theory of causation.

Public Nuisance Theory: Plaintiffs’ lawyers have tried turning public nuisance into a “super tort” for creating corporate liability. The Rhode Island and New Jersey Supreme Courts cited our work in rejecting such theories. We have also filed briefs in major cases seeking to use public nuisance against energy companies over climate change.

Innovator Liability: The Iowa Supreme Court and the U.S. Court of Appeals for the Sixth Circuit cited us in rejecting claims against “brand-name” manufacturers when the plaintiff admittedly used only generic versions of the products made and sold by competitors.

Consumer Protection Acts: The West Virginia high court quoted our work in finding that highly regulated industries are not subject to private lawsuits under the state’s consumer protection law.

Medical Monitoring: The New York Court of Appeals cited us in rejecting medical monitoring claims when plaintiffs exposed to hazardous materials have no physical injury.

Noneconomic Damages: The Texas and New Jersey Supreme Courts looked to our work in resisting sympathetic but unsound efforts to introduce emotional harm damages into pet injury cases.

The breadth and success of Shook’s National Amicus Practice has made it the choice of prominent business associations, including the American Tort Reform Association, U.S. Chamber of Commerce, National Association of Manufacturers, and NFIB Small Business Legal Center.